Code Section Group

Education Code - EDC

TITLE 3. POSTSECONDARY EDUCATION [66000 - 101149.5]

  ( Title 3 enacted by Stats. 1976, Ch. 1010. )

DIVISION 5. GENERAL PROVISIONS [66000 - 70115.2]

  ( Division 5 enacted by Stats. 1976, Ch. 1010. )

PART 40. DONAHOE HIGHER EDUCATION ACT [66000 - 67400]

  ( Part 40 enacted by Stats. 1976, Ch. 1010. )

CHAPTER 4.5. Equity in Higher Education Act [66250 - 66292.4]

  ( Heading of Chapter 4.5 amended by Stats. 2011, Ch. 637, Sec. 3. )

ARTICLE 4. Sex Equity in Education [66271.5 - 66281.8]
  ( Article 4 added by Stats. 1998, Ch. 914, Sec. 49. )

66271.5.
  

The provisions of this article are supplemental to any provision in the Constitution or laws of the United States or laws of the State of California, relating to discrimination.

(Added by Stats. 1998, Ch. 914, Sec. 49. Effective January 1, 1999.)

66271.6.
  

The Legislature finds and declares all of the following:

(a) On June 23, 1972, Congress enacted Title IX of the Education Amendments of 1972 to the 1964 Civil Rights Act. This landmark legislation provides that: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance.”

(b) While Title IX applies to all aspects of educational opportunities, it is well-known for opening the door to athletics for girls and women.

(c) In 1975, the United States Department of Health, Education and Welfare enacted regulations requiring that secondary and postsecondary schools comply with Title IX immediately. Those that could show real barriers to immediate compliance had just three years to meet the regulations, including equalizing their athletic programs.

(d) California state law has included several athletic equity provisions similar to those in Title IX since 1976. For example, the Sex Equity in Education Act provides, in subdivision (a) of Section 221.7, that: “It is the intent of the Legislature that opportunities for participation in athletics be provided equally to male and female pupils.” Similar provisions are expressly applicable to community colleges and the California State University.

(e) Enhancing athletic opportunities for young women and girls is vitally important because of the significant benefits athletic opportunities provide including greater academic success, better physical and psychological health, responsible social behaviors, and enhanced interpersonal skills. For some women and girls, the financial support made available through athletic scholarships can make it possible to attend college.

(f) Title IX has promoted significant advances for women and girls to participate in sports. While fewer than 32,000 women participated in college sports nationally prior to the enactment of Title IX, today approximately 163,000 women participate—a nearly five fold—or more than 400 percent increase. Athletic opportunities for girls at the high school level nationally have grown even more dramatically—from 294,000 in 1972 to 2,800,000 today—an 894 percent increase. California boasts the second highest number of high school girls participating in athletics nationwide—a total of 270,000 girls in California’s high schools now participate in interscholastic athletics.

(g) Men’s intercollegiate athletic participation has also increased, rising from approximately 220,000 in 1981–82 to approximately 232,000 in 1998–99. Between 1981–82 and 1998–99, football participation increased by 7,199; men’s participation in baseball, lacrosse, and soccer also increased during the same time period. High school boys’ participation rates have also increased—jumping 8.2 percent in the last three years in California.

(h) The dramatic increases in participation rates at both the high school and college levels since Title IX was passed show that when doors are opened to women and girls, they will rush through. Courts have repeatedly recognized that it is unfounded and unlawful to claim that women and girls are less interested in sports than men and boys. As one court stated, “interest and ability rarely develop in a vacuum; they evolve as a function of opportunity and experience . . .” (Cohen v. Brown University (1st Cir. 1996) 101 F.3d 155, 179). Accordingly, courts have repeatedly rejected arguments that the assessed interest level of girls in athletics should determine Title IX compliance (Neal v. California State University (9th Cir. 1999) 198 F.3d. 763, 767). Thus, interest surveys cannot accurately determine whether an educational institution has effectively accommodated the interests and abilities of female students.

(i) The United States Department of Education uses a three-part test adopted in 1979 to determine whether an educational institution has met the key Title IX requirement that a school “effectively accommodate the interests and abilities of members of both sexes” when it comes to athletic participation. All three prongs of the test have been used successfully by schools to comply with Title IX, and have given schools flexibility in structuring their athletic programs. The three-part test neither imposes quotas or requires preferential treatment, nor requires mirror-image men’s and women’s sports programs. The lawfulness of the three-part test has been affirmed by every federal appellate court to consider the issue.

(j) Despite major advances in athletic opportunities for females since 1972, discrimination still limits athletic opportunities for girls and women at all educational levels today. For example, although women in Division I colleges are 53 percent of the student body, they receive only 41 percent of the opportunities to play sports, 36 percent of the overall athletic operating budgets, and 32 percent of the dollars spent to recruit new athletes.

(k) In California, the percentage of female athletes at California State University (CSU) campuses actually declined from 36 percent in 1977 to 30 percent in 1990. In 1993, California National Organization for Women (Cal NOW) filed suit against the CSU system alleging violations of California’s gender equity in athletics law. Ultimately, CSU and Cal NOW entered into a consent decree focusing on participation, expenditures, and grants-in-aid for women athletes. As a result of the consent decree, women now comprise over 52 percent of CSU athletes, expenditures on women’s sports have increased 315 percent in the last 10 years and grants-in-aid for female athletes have increased 232 percent during the same time period.

(l) Despite major gains for women under California and federal law, inequities in the treatment of men’s and women’s and boys’ and girls’ athletic teams at some educational institutions remain. These inequities include, but are not limited to, all of the following:

(1) Participation rates for women and girls.

(2) Number of sports offered.

(3) Number of levels of teams.

(4) Encouragement by spirit and band groups.

(5) Facilities.

(6) Locker rooms.

(7) Scheduling of games and practice times.

(8) Level of financial support by the district, school, booster club or clubs, and outside sponsors.

(9) Treatment of coaches.

(10) Opportunities to receive coaching and academic tutors.

(11) Travel and per diem allowance.

(12) Medical and training facilities and services.

(13) Housing and dining facilities and services.

(14) Scholarship money.

(15) Publicity.

(m) Educational institutions at all levels are strongly encouraged to take immediate active steps toward full compliance with Title IX and California’s gender equity in athletics laws by reviewing all aspects of their athletic program, including those factors listed in subdivision (l) where appropriate, to ensure that they are offering male and female student athletes equivalent opportunities to play sports and that they are treating male and female athletes fairly. The need to encourage and increase athletic participation by girls and women is especially strong at educational institutions serving inner-city and urban communities. Full compliance with Title IX is nondiscretionary.

(Added by Stats. 2003, Ch. 660, Sec. 2. Effective January 1, 2004.)

66271.7.
  

(a) It is the policy of the state that community college classes and courses, including nonacademic and elective classes and courses, shall be conducted without regard to the sex of the student enrolled in these classes and courses.

(b) No community college district shall prohibit any student from enrolling in any class or course on the basis of the sex of the student.

(c) No community college district shall require students of one sex to enroll in a particular class or course, unless the same class or course is also required of students of the opposite sex.

(d) No school counselor, teacher, instructor, administrator, or aide shall, on the basis of the sex of a student, offer vocational or school program guidance to students of one sex which is different from that offered to students of the opposite sex or, in counseling students, differentiate career, vocational or higher education opportunities on the basis of the sex of the student counseled. Any school personnel acting in a career counseling or course selection capacity to any pupil shall affirmatively explore with the pupil the possibility of careers, or courses leading to careers, that are nontraditional for that pupil’s sex.

(e) Participation in a particular physical education activity or sport, if required of students of one sex, shall be available to students of each sex.

(Amended by Stats. 2003, Ch. 660, Sec. 3. Effective January 1, 2004.)

66271.8.
  

(a) The Legislature finds and declares that female students should be accorded opportunities for participation in public postsecondary educational institution athletic programs equivalent to those accorded male students.

(b) In apportioning public funds, public postsecondary educational institutions shall apportion amounts available for athletics to ensure that equitable amounts will be allocated for all students, except that allowances may be made for differences in the costs of various athletic programs. Notwithstanding any other provision of law, no public funds shall be used in connection with any athletic program conducted under the auspices of a public postsecondary educational institution, or any student organization within the postsecondary educational institution, that does not provide equivalent opportunity to both sexes for participation and use of facilities. The factors considered when determining whether an educational institution has provided equivalent opportunity include, but are not limited to, all of the following:

(1) Whether the selection of sports and levels of competition offered effectively accommodate the athletic interests and abilities of members of both sexes.

(2) The provision of equipment and supplies.

(3) Scheduling of games and practice times.

(4) Selection of the season for a sport.

(5) Location of the games and practices.

(6) Compensation for coaches.

(7) Travel arrangements.

(8) Per diem.

(9) Locker rooms.

(10) Practice and competitive facilities.

(11) Medical services.

(12) Housing facilities.

(13) Dining facilities.

(14) Scholarships.

(15) Publicity.

(c) Whether a postsecondary educational institution has effectively accommodated the athletic interests and abilities of members of both sexes shall be assessed in any one of the following ways:

(1) Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments.

(2) Where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion that is demonstrably responsive to the developing interest and abilities of the members of that sex.

(3) Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a history and continuing practice of program expansion as required in paragraph (2), whether the institution can demonstrate that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.

(d) Nothing in this section shall be construed to invalidate any existing consent decree or any other settlement agreement entered into by an educational institution to address gender equity in athletic programs.

(e) Nothing in this section shall be construed to require a public postsecondary educational institution to require competition between male and female students in school-sponsored athletic programs.

(f) If an educational institution must cut its athletic budget, the educational institution shall do so consistently with its legal obligation to comply with both state and federal gender equity laws.

(g) It is the intent of the Legislature that the three-part test articulated in subdivision (c) be interpreted as it has been in the policies and regulations of the Office of Civil Rights in effect on January 1, 2003.

(Amended by Stats. 2004, Ch. 183, Sec. 81. Effective January 1, 2005.)

66271.9.
  

(a) The California Community Colleges and the California State University shall, and a satellite campus of these systems and the University of California are encouraged to, provide reasonable accommodations on their respective campuses for a lactating student to express breast milk, breast-feed an infant child, or address other needs related to breast-feeding. Reasonable accommodations under this section include, but are not limited to, all of the following:

(1) Access to a private and secure room, other than a restroom, to express breast milk or breast-feed an infant child. The room shall have a comfortable place to sit and have a table or shelf to place equipment described in paragraph (3).

(2) Permission to bring onto a college or university campus a breast pump and any other equipment used to express breast milk.

(3) Access to a power source for a breast pump or any other equipment used to express breast milk.

(b) Lactating students on a college or university campus shall be provided a reasonable amount of time to accommodate their need to express breast milk or breast-feed an infant child.

(c) A campus of the California Community Colleges or the California State University may use an existing facility to meet the requirements specified in subdivision (a).

(d) Students shall not incur an academic penalty as a result of their use of the reasonable accommodations specified in this section, and shall be provided the opportunity to make up any work missed due to such use.

(e) Upon the construction of a new campus of the California Community Colleges or the California State University, the replacement, expansion, or renovation costing five million dollars ($5,000,000) or more involving plumbing of an existing building regularly used by students, including a student center, or the construction of a new building costing five million dollars ($5,000,000) or more designed for use by students, the respective educational institution shall provide a sink in addition to the accommodations described in subdivision (a) in a room in the newly constructed campus or building, or in a room in the replaced, expanded, or renovated building. This subdivision only applies to an educational institution if the campus room currently designated for a lactating student to express breast milk or breast-feed an infant child does not have a sink.

(f) This section does not require an existing room designated for a lactating student to express breast milk or breast-feed an infant child to have a sink.

(g) The lactation accommodation shall be available to a student whenever a student is required to be present on campus.

(h) (1) A complaint of noncompliance with the requirements of this section may be filed consistent with Subchapter 5 (commencing with Section 59300) of Chapter 10 of Division 6 of Title 5 of the California Code of Regulations. If the complaint is found to have merit, the campus or appropriate appellate body shall provide a remedy to the affected student.

(2) A complaint of noncompliance with the requirements of this section may be filed consistent with the procedures established by the California State University for complaints by students of discrimination based on disability, gender, or other applicable characteristics, and a student shall be afforded any remedies the student is entitled to pursuant to those procedures.

(i) This section does not infringe on any right to breast-feed in public pursuant to Section 43.3 of the Civil Code or any other law.

(j) The requirements in this section shall be implemented by the California Community Colleges and the California State University, and the University of California is urged to implement the requirements in this section, no later than January 1, 2020.

(Added by Stats. 2018, Ch. 947, Sec. 2. (AB 2785) Effective January 1, 2019.)

66272.
  

This article shall not apply to an educational institution whose primary purpose is the training of individuals for the military services of the United States, or the merchant marine.

(Added by renumbering Section 222 by Stats. 1998, Ch. 914, Sec. 19. Effective January 1, 1999.)

66273.
  

This article shall not apply to the membership practices of a social fraternity or social sorority, exempt from taxation under subdivision (a) of Section 501 of the federal Internal Revenue Code of 1954, whose active membership consists primarily of students in attendance at a postsecondary educational institution.

(Added by Stats. 1998, Ch. 914, Sec. 49. Effective January 1, 1999.)

66276.
  

This article shall not apply to any scholarship or other financial assistance awarded by a postsecondary educational institution to any individual upon the basis of a combination of factors related to the individual’s personal appearance, poise, and talent as an award in any pageant in which participation is limited exclusively to individuals of one sex, provided that the pageant complies with other nondiscrimination provisions of state and federal law.

(Added by renumbering Section 226 by Stats. 1998, Ch. 914, Sec. 22. Effective January 1, 1999.)

66277.
  

In regard to admissions to educational institutions, this article shall apply only to institutions of vocational, professional, or postgraduate education, and to public postsecondary education institutions.

(Added by renumbering Section 227 by Stats. 1998, Ch. 914, Sec. 23. Effective January 1, 1999.)

66278.
  

In regard to admissions to educational institutions, this article shall not apply to any public institution of undergraduate higher education which traditionally and continually from its establishment has had a policy of admitting only students of one sex.

(Added by renumbering Section 228 by Stats. 1998, Ch. 914, Sec. 24. Effective January 1, 1999.)

66281.5.
  

(a) It is the policy of the State of California, pursuant to Section 66251, that all persons, regardless of their sex, should enjoy freedom from discrimination of any kind in the postsecondary educational institution of the state. The purpose of this section is to provide notification of the prohibition against sexual harassment as a form of sexual discrimination and to provide notification of available remedies.

(b) Each postsecondary educational institution in the State of California shall have a written policy on sexual harassment, including information on the complaint process and the timeline for the complaint process, which shall be available on its Internet Web site. It is the intent of the Legislature that each educational institution in this state include this policy in its regular policy statement rather than distribute an additional written document.

(c) The postsecondary educational institution’s written policy on sexual harassment shall include information on where to obtain the specific rules and procedures for reporting charges of sexual harassment and for pursuing available remedies and resources, both on and off campus.

(d) A copy of the postsecondary educational institution’s written policy on sexual harassment shall be displayed in a prominent location in the main administrative building or other area of the campus or schoolsite. “Prominent location” means that location, or those locations, in the main administrative building or other area where notices regarding the institution’s rules, regulations, procedures, and standards of conduct are posted.

(e) A copy of the postsecondary educational institution’s written policy on sexual harassment, as it pertains to students, shall be provided as part of any orientation program conducted for new students at the beginning of each quarter, semester, or summer session, as applicable.

(f) A copy of the postsecondary educational institution’s written policy on sexual harassment shall be provided for each faculty member, all members of the administrative staff, and all members of the support staff at the beginning of the first quarter or semester of the school year, or at the time that there is a new employee hired.

(g) A copy of the postsecondary educational institution’s written policy on sexual harassment shall appear in any publication of the institution that sets forth the comprehensive rules, regulations, procedures, and standards of conduct for the institution.

(Amended by Stats. 2016, Ch. 107, Sec. 1. (AB 2654) Effective January 1, 2017.)

66281.7.
  

(a) It is the policy of the State of California, pursuant to Section 66251, that all persons, regardless of their sex, should enjoy freedom from discrimination of any kind, including, but not limited to, pregnancy discrimination as described in Title IX of the Education Amendments of 1972 (20 U.S.C. Sec. 1681, et seq.), in the postsecondary educational institutions of the state.

(b) Each of the following requirements apply to postsecondary educational institutions in this state:

(1) A postsecondary educational institution, including the faculty, staff, or other employees of the institution, shall not do any of the following solely due to pregnancy or pregnancy-related issues:

(A) Require a graduate student to take a leave of absence or withdraw from the graduate program.

(B) Limit the student’s graduate studies.

(2) A postsecondary educational institution, including the faculty, staff, or other employees of the institution, shall reasonably accommodate pregnant graduate students so they may complete their graduate courses of study and research. Reasonable accommodation within the meaning of this subdivision may include, but is not necessarily limited to, allowances for the pregnant student’s health and safety, such as allowing the student to maintain a safe distance from hazardous substances, allowing the student to make up tests and assignments that are missed for pregnancy-related reasons, or allowing the student to take a leave of absence. Reasonable accommodation shall include excusing absences that are medically necessary, as required under Title IX.

(3) A graduate student who chooses to take a leave of absence because the graduate student is pregnant or has recently given birth shall be allowed a period consistent with the policies of the postsecondary educational institution, or a period of 12 additional months, whichever period is longer, to prepare for and take preliminary and qualifying examinations and an extension of at least 12 months toward normative time to degree while in candidacy for a graduate degree, unless a longer extension is medically necessary.

(4) A graduate student who is not the birth parent and who chooses to take a leave of absence because of the birth of the student’s child shall be allowed a period consistent with the policies of the postsecondary educational institution, or a period of one month, whichever period is longer, to prepare for and take preliminary and qualifying examinations, and an extension of at least one month toward normative time to degree while in candidacy for a graduate degree, unless a longer period or extension is medically necessary to care for the student’s partner or their child.

(5) An enrolled graduate student in good academic standing who chooses to take a leave of absence because the student is pregnant or has recently given birth shall return to the student program in good academic standing following a leave period consistent with the policies of the postsecondary educational institution or of up to one academic year, whichever period is longer, subject to the reasonable administrative requirements of the institution, unless there is a medical reason for a longer absence, in which case the student’s standing in the graduate program shall be maintained during that period of absence.

(6) An enrolled graduate student in good academic standing who is not the birth parent and who chooses to take a leave of absence because of the birth of the student’s child shall return to the student’s program in good academic standing following a leave period consistent with the policies of the postsecondary educational institution, or of up to one month, whichever period is longer, subject to the reasonable administrative requirements of the institution.

(c) Each postsecondary educational institution shall have a written policy for graduate students on pregnancy discrimination and procedures for addressing pregnancy discrimination complaints under Title IX or this section. A copy of this policy shall be made available to faculty, staff, and employees in their required training. This policy shall be made available to all graduate students attending orientation sessions at a postsecondary educational institution.

(d) Each public postsecondary educational institution shall notify pregnant and parenting students of the protections provided by Title IX through prominently posting a notice of the Title IX protections on the institution’s internet website.

(e) Each public postsecondary educational institution with an on-campus medical center shall provide notice of the protections provided by Title IX through the medical center to a student who requests information regarding policies or protections for students with children or pregnant students and when otherwise appropriate.

(Amended by Stats. 2020, Ch. 370, Sec. 94. (SB 1371) Effective January 1, 2021.)

66281.8.
  

(a) For the purposes of this section, the following terms have the following meanings:

(1) “Postsecondary institution” means a campus of the University of California, the California State University, or the California Community Colleges, a private postsecondary educational institution, or an independent institution of higher education that receives state financial assistance.

(2) (A) “Responsible employee” means an employee who has the authority to take action to redress sexual harassment or provide supportive measures to students, or who has the duty to report sexual harassment to an appropriate school official who has that authority.

(B) “Responsible employee” includes, but is not limited to, those individuals with any of the following positions or substantially similar positions or job duties, regardless of the specific title the institution may attach to the position:

(i) Title IX coordinator or other coordinator designated to comply with and carry out the institution’s responsibilities under this section.

(ii) Residential advisors, while performing the duties of employment by the institution.

(iii) Housing directors, coordinators, or deans.

(iv) Student life directors, coordinators, or deans.

(v) Athletic directors, coordinators, or deans.

(vi) Coaches of any student athletic or academic team or activity.

(vii) Faculty and associate faculty, teachers, instructors, or lecturers.

(viii) Graduate student instructors, while performing the duties of employment by the institution.

(ix) Laboratory directors, coordinators, or principal investigators.

(x) Internship or externship directors or coordinators.

(xi) Study abroad program directors or coordinators.

(C) (i) Notwithstanding subparagraphs (A) and (B), “responsible employee” does not include those individuals described in subparagraphs (A) and (B) who are also any of the following:

(I) A therapist or other professional described in Sections 990, 1010, 1030, 1035, and 1037 of the Evidence Code, including a University of California Center for Advocacy, Resources, and Education (CARE) director, advocate, or employee.

(II) A University of California Center for Advocacy, Resources, and Education (CARE) director, advocate, or employee.

(III) A California State University victim advocate or other position with similar responsibilities.

(IV) An individual acting in a professional capacity for which confidentiality is mandated by law.

(ii) An individual described in clause (i) shall inform each student who provides the individual with information regarding sexual harassment of the student’s ability to report to a responsible employee and direct the student to those specific reporting resources.

(b) Notwithstanding Section 67400, in order to receive state financial assistance, as defined in Section 213, the appropriate governing board or body of each postsecondary institution shall implement, and at all times comply with, all of the following requirements at the institution:

(1) It shall disseminate, by electronic or other means, a notice of nondiscrimination, including, but not limited to, all information required to be included in the notice provided pursuant to Section 66281.5, to all of the following:

(A) Each employee of the postsecondary institution.

(B) Each volunteer who will regularly interact with students.

(C) Each individual or entity under contract with the postsecondary institution to perform any service involving regular interaction with students at the institution.

(2) It shall designate at least one employee of the institution to coordinate its efforts to comply with and carry out its responsibilities under this section. The employee may be the same individual as the institution’s federal Title IX coordinator. The employee shall have adequate training on what constitutes sexual harassment and on trauma-informed investigatory and hearing practices, and shall understand how the institution’s grievance procedures operate.

(3) It shall adopt rules and procedures within the policies required by Title IX of the Education Amendments of 1972 (20 U.S.C. Sec. 1681 et seq.) and Section 67386 for the prevention of sexual harassment that also provide for all of the following elements:

(A) The institution’s primary concern shall be student safety. Any disciplinary measures imposed by the institution for violations of the institution’s student conduct policy at or near the time of the incident being investigated shall be consistent with paragraph (10) of subdivision (b) of Section 67386.

(B) The institution shall take reasonable steps to respond to each incident of sexual harassment involving individuals subject to the institution’s policies that occur in connection with any educational activity or other program of the institution, as well as incidents that occurred outside of those educational programs or activities, whether they occurred on or off campus, if, based on the allegations, there is any reason to believe that the incident could contribute to a hostile educational environment or otherwise interfere with a student’s access to education.

(C) (i) Regardless of whether or not a complaint has been filed under the institution’s grievance procedures, if the institution knows, or reasonably should know, about possible sexual harassment involving individuals subject to the institution’s policies at the time, the institution shall promptly investigate to determine whether the alleged conduct more likely than not occurred, or otherwise respond if the institution determines that an investigation is not required. If the institution determines that the alleged conduct more likely than not occurred, it shall immediately take reasonable steps to end the harassment, address the hostile environment, if one has been created, prevent its recurrence, and address its effects. A postsecondary institution shall be presumed to know of sexual harassment if a responsible employee knew, or, in the exercise of reasonable care, should have known, about the sexual harassment. The institution may rebut this presumption of knowledge if it shows all of the following:

(I) The institution provides training and requires all nonconfidential responsible employees to report sexual harassment.

(II) Each nonconfidential responsible employee with actual or constructive knowledge of the conduct in question was provided training and direction to report sexual harassment.

(III) Each nonconfidential responsible employee with actual or constructive knowledge of the conduct in question failed to report it.

(ii) The institution shall consider and respond to requests for accommodations relating to prior incidents of sexual harassment that could contribute to a hostile educational environment or otherwise interfere with a student’s access to education where both individuals are, at the time of the request, subject to the institution’s policies.

(D) (i) If a complainant requests confidentiality, which could preclude a meaningful investigation or potential discipline of the potential respondent, or that no investigation or disciplinary action be pursued to address alleged sexual harassment, the institution shall take the request seriously, while at the same time considering its responsibility to provide a safe and nondiscriminatory environment for all students, including for the complainant. The institution shall generally grant the request. In determining whether to disclose a complainant’s identity or proceed to an investigation over the objection of the complainant, the institution may consider whether any of the following apply:

(I) There are multiple or prior reports of sexual misconduct against the respondent.

(II) The respondent reportedly used a weapon, physical restraints, or engaged in battery.

(III) The respondent is a faculty or staff member with oversight of students.

(IV) There is a power imbalance between the complainant and respondent.

(V) The complainant believes that the complainant will be less safe if the complainant’s name is disclosed or an investigation is conducted.

(VI) The institution is able to conduct a thorough investigation and obtain relevant evidence in the absence of the complainant’s cooperation.

(ii) If the institution determines that it can honor the student’s request for confidentiality, it shall still take reasonable steps to respond to the complaint, consistent with the request, to limit the effects of the alleged sexual harassment and prevent its recurrence without initiating formal action against the alleged perpetrator or revealing the identity of the complainant. These steps may include increased monitoring, supervision, or security at locations or activities where the alleged misconduct occurred; providing additional training and education materials for students and employees; or conducting climate surveys regarding sexual violence. The institution shall also take immediate steps to provide for the safety of the complainant while keeping the complainant’s identity confidential as appropriate. These steps may include changing living arrangements or course schedules, assignments, or tests. The complainant shall be notified that the steps the institution will take to respond to the complaint will be limited by the request for confidentiality.

(iii) If the institution determines that it must disclose the complainant’s identity to the respondent or proceed with an investigation, it shall inform the complainant prior to making this disclosure or initiating the investigation. The institution shall also take immediate steps to provide for the safety of the complainant where appropriate. In the event the complainant requests that the institution inform the respondent that the student asked the institution not to investigate or seek discipline, the institution shall honor this request.

(4) (A) It shall adopt and publish on its internet website grievance procedures that provide for prompt and equitable resolution of sexual harassment complaints filed by a student against an employee or another student. The grievance procedures shall satisfy all of the following requirements:

(i) They shall state that the investigation and adjudication of alleged misconduct under this section is not an adversarial process between the complainant, the respondent, and the witnesses, but rather a process for postsecondary institutions to comply with their obligations under existing law. The complainant does not have the burden to prove, nor does the respondent have the burden to disprove, the underlying allegation or allegations of misconduct.

(ii) They shall require notice be provided to all students of the grievance procedures, including where and how complaints may be filed.

(iii) They shall ensure that the persons or entities responsible for conducting investigations, finding facts, and making disciplinary decisions are neutral.

(iv) They shall ensure trauma-informed and impartial investigation of complaints. Student parties shall be given an opportunity to identify witnesses and other evidence to assist the institution in determining whether a policy violation has occurred, and shall be informed that any evidence available but not disclosed during the investigation might not be considered at a subsequent hearing.

(v) They shall include reasonable and equitable evidentiary guidelines, and may include page or word limitations on party submissions.

(vi) They shall include all of the following:

(I) The investigator or hearing office shall not consider the past sexual history of a complainant or respondent except in the limited circumstances permitted by this clause.

(II) The investigator or hearing officer shall not consider prior or subsequent sexual history between the complainant and anyone other than the respondent for any reason unless directly relevant to prove that physical injuries alleged to have been inflicted by the respondent were inflicted by another individual.

(III) (ia) The investigator or hearing officer shall not consider the existence of a dating relationship or prior or subsequent consensual sexual relations between the complainant and the respondent unless the evidence is relevant to how the parties communicated consent in prior or subsequent consensual sexual relations.

(ib) Where the investigator or hearing officer allows consideration of evidence about a dating relationship or prior or subsequent consensual sexual relations between the complainant and the respondent pursuant to sub-subclause (ia), the mere fact that the complainant and respondent engaged in other consensual sexual relations with one another is never sufficient, by itself, to establish that the conduct in question was consensual.

(IV) Before allowing the consideration of any evidence proffered pursuant to this subdivision, the investigator or hearing officer shall provide a written explanation to the parties as to why consideration of the evidence is consistent with this clause.

(vii) They shall prohibit questions of either party or of any witness that are repetitive, irrelevant, or harassing.

(viii) They shall provide that the institution shall decide whether or not a hearing is necessary to determine whether any sexual violence more likely than not occurred. In making this decision, an institution may consider whether the parties elected to participate in the investigation and whether each party had the opportunity to suggest questions to be asked of the other party or witnesses, or both, during the investigation. Any hearing shall be subject to the following rules:

(I) Any cross-examination of either party or any witness shall not be conducted directly by a party or a party’s advisor.

(II) Either party or any witness may request to answer the questions by video from a remote location.

(III) Student parties shall have the opportunity to submit written questions to the hearing officer in advance of the hearing. At the hearing, the other party shall have an opportunity to note an objection to the questions posed. The institution may limit such objections to written form, and neither the hearing officer nor the institution are obligated to respond, other than to include any objection in the record. The hearing officer shall have the authority and obligation to discard or rephrase any question that the hearing officer deems to be repetitive, irrelevant, or harassing. In making these determinations, the hearing officer is not bound by, but may take guidance from, the formal rules of evidence.

(IV) Generally, the parties may not introduce evidence, including witness testimony, at the hearing that the party did not identify during the investigation and that was available at the time of the investigation. However, the hearing officer has discretion to accept for good cause, or exclude, such new evidence offered at the hearing.

(ix) They shall provide an explanation of the meaning of the preponderance of the evidence standard, and affirm that it shall apply to adjudications under this section. The preponderance of the evidence standard is met if the institution determines that it is more likely than not that the alleged misconduct occurred, based on the facts available at the time of the decision.

(x) They shall provide a reasonably prompt timeframe for all of the major stages of the complaint process, as well as a process for extending the institution’s timelines for good cause only, and shall provide for the prompt communication of that information to the complainant and respondent. The communicated timeline information shall include, but shall not necessarily be limited to, each of the following:

(I) The period during which the institution shall conduct any investigation.

(II) The date by which the parties shall be notified of the outcome of any investigation.

(III) The deadlines and process for parties to appeal, if the institution’s grievance procedures include an appeals process.

(xi) They shall provide that the institution shall not unreasonably deny a student party’s request for an extension of a deadline related to a complaint during periods of examinations or school closures.

(xii) They shall provide for periodic status updates on the investigation consistent with the timelines referenced in clause (x) to the complainant and respondent.

(xiii) They shall provide for notice in writing to parties of any extension of a time period granted in the investigation and fact-finding process that would change the prospective timeframes for the major stages of the complaint process, and the reason for that extension.

(xiv) They shall provide for written notice to parties of the outcome of the complaint, including whether a policy violation was found to have occurred, the basis for that determination, including factual findings, and any discipline imposed.

(xv) They shall provide assurance that the institution will take steps to prevent recurrence of any harassment and to correct its discriminatory effects on the complainant and others, if appropriate.

(xvi) They shall require that student parties receive notice if the institution is conducting a formal investigation. The notice shall include the allegations and the alleged institutional policy violations under review. Any new allegations that arise during the course of the investigation that could subject either party to new or additional sanctions shall be subject to the same notice requirements.

(xvii) They shall afford both student parties the opportunity to each have a support person or adviser accompany the student party during any stage of the process.

(xviii) They shall advise student parties of their right to consult with an attorney, at their own expense, at any stage of the process if they wish to do so. An attorney may serve as a support person or adviser pursuant to clause (xvii).

(xix) They shall require that student parties receive a notice regarding appropriate counseling resources developed and maintained by the institution for student parties in school misconduct matters involving sexual harassment.

(xx) They shall allow either party to appeal the outcome of the grievance proceeding if the institution has such an appeals process. An institution’s grievance procedure may limit the grounds for an appeal, provided that any limitation shall apply equally to all parties and that the nonappealing party shall have an opportunity to respond to the appeal.

(xxi) They shall outline the possible interim measures that may be put in place during the pendency of an investigation, the supportive measures that may be provided in the absence of an investigation, and the disciplinary outcomes, remedial measures, and systemic remedies that may follow a final finding of responsibility, subject to all of the following:

(I) An institution shall not mandate mediation to resolve allegations of sexual harassment, and shall not allow mediation, even on a voluntary basis, to resolve allegations of sexual violence.

(II) An institution shall not require that the complainant enter a voluntary resolution agreement or any other form of resolution as a prerequisite to receiving remedial measures from the institution which safeguard the complainant’s access to education.

(III) (ia) When requested by a complainant or otherwise determined to be appropriate, an institution shall issue an interim no-contact directive prohibiting the respondent from contacting the complainant during the pendency of the investigation. An institution shall not issue an interim mutual no-contact directive automatically, but instead shall consider the specific circumstances of each case to determine whether a mutual no-contact directive is necessary or justifiable to protect the noncomplaining party’s safety or well-being, or to respond to interference with an investigation. A no-contact directive issued after a decision of responsibility has been made shall be unilateral and only apply against the party found responsible.

(ib) Upon the issuance of a mutual no-contact directive, an institution shall provide the parties with a written justification for the directive and an explanation of the terms of the directive. Upon the issuance of any no-contact directive, the institution shall provide the parties with an explanation of the terms of the directive, including the circumstances, if any, under which violation could be subject to disciplinary action.

(xxii) They shall describe the obligations of all faculty and staff designated by the institution as required to report concerns of sexual harassment to the Title IX coordinator or other designated employee, consistent with the requirement in paragraph (2). An individual who has a confidential relationship with a student or students by law is exempt from having to report sexual harassment concerns to the Title IX coordinator or other designated employee, unless otherwise required by law.

(xxiii) They shall contain a requirement that the Title IX coordinator or other designated employee assess each report of sexual harassment and provide outreach, as appropriate, to each identifiable student who is alleged to be the victim of the reported conduct. The outreach shall include all of the following information:

(I) The institution has received a report that the student may have been a victim of sexual harassment.

(II) A statement that retaliation for filing a complaint or participating in a complaint process, or both, under this section is prohibited.

(III) Counseling resources within the institution or in the community.

(IV) Where a crime may have occurred, notice that the student has the right, but not the obligation, to report the matter to law enforcement.

(V) The institution’s investigation procedures established pursuant to the requirements of this section.

(VI) Potential interim measures, such as no-contact directives, housing changes, and academic schedule changes, where applicable.

(VII) The importance of preserving evidence.

(VIII) A request for the student to meet with the Title IX coordinator or other designated employee to discuss options for responding to the report.

(IX) The manner in which the institution responds to reports of sexual harassment and a description of potential disciplinary consequences.

(B) The grievance procedures shall also provide a process for a student to report sexual harassment by a third party. The institution shall respond to those reports to address or prevent a hostile educational environment or to ensure students’ access to education. Nothing in this section shall establish any duty or obligation owed by a postsecondary institution to nonstudent parties that does not already exist by statute or agreement.

(5) It shall publish in a prominent place on its internet website, with accompanying text clearly associating them with the sexual harassment and sexual violence grievance processes, the name, title, and contact information, which shall include the telephone number, office location, and email address, of each of the following individuals:

(A) The Title IX coordinator or other designated employee.

(B) Any individual official within the institution with the authority to investigate complaints made pursuant to this section or to institute corrective measures such as sanctions, accommodations, or other forms of resolution of the complaint.

(6) (A) It shall provide the training described in paragraph (12) of subdivision (b) of Section 67386 to each employee engaged in the grievance procedures related to sex discrimination, including sexual violence, which shall include for these employees training on (i) trauma-informed investigatory and hearing practices that help ensure an impartial and equitable process, (ii) best practices for assessment of a sexual harassment or sexual violence complaint, (iii) best practices for questioning of the complainant, respondent, and witnesses, and (iv) implicit bias and racial inequities, both broadly and in school disciplinary processes.

(B) Materials approved by the institution for this training shall include statistics on the prevalence of sexual harassment and sexual violence in the educational setting, and the differing rates at which students experience sexual harassment and sexual assault in the educational setting based on their race, sexual orientation, disability, gender, and gender identity. When possible, citation to such statistics shall be included in the written sexual harassment policies required by Section 66281.5 accompanying the institution’s grievance procedures.

(7) If the institution has on-campus housing, it shall ensure that residential life student and nonstudent staff, or their equivalent, annually receive training on how to handle, in a trauma-informed manner, reports made to them of sexual harassment or sexual violence, and situations in which they are aware of sexual harassment or sexual violence, in student residential facilities.

(8) It shall notify employees of the obligation to report harassment to appropriate school officials.

(9) It shall provide training to all employees on the identification of sexual harassment, including the person to whom it should be reported. This paragraph does not require an institution to provide separate training for identification of sexual harassment. The school may include this requirement in existing employee training on sexual harassment.

(c) This section does not require a school to provide separate grievance procedures for student sexual harassment complaints. The school may use student disciplinary procedures or other separate procedures to resolve sexual harassment complaints. Any procedures used to investigate complaints of sexual harassment, including disciplinary procedures, shall afford a complainant and a respondent a prompt and equitable resolution. If the school relies on existing procedures for compliance with the requirements of this section, the Title IX officer or designated employee shall review the school’s procedures to ensure that they comply with the requirements of this section.

(d) A violation of this section may constitute discrimination and shall be subject to a civil action brought pursuant to Sections 66292.3 and 66292.4.

(e) The requirements of this section shall be implemented at each postsecondary institution by no later than January 1, 2022.

(f) If on or after the date of implementation, any provision of the act that adds this section conflicts with federal law, that provision shall be rendered inoperative for the duration of the conflict and without affecting the whole.

(g) (1) Any case law interpreting procedural requirements or process that is due to student complainants or respondents when adjudicating complaints of sexual or gender-based violence, including dating or domestic violence, at postsecondary educational institutions in the State of California shall have no retroactive effect.

(2) Any case law that conflicts with the provisions of the act that adds this section shall be superseded as of this statute’s effective date.

(Added by Stats. 2020, Ch. 303, Sec. 3. (SB 493) Effective January 1, 2021. Conditionally inoperative by its own provisions.)

EDCEducation Code - EDC4